HKSAR v. LIU WEIPIAO

HCCC 281/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 281 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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Background and the Facts

The defendant pleaded guilty at the Eastern Magistrates’ Court to one count of trafficking in a dangerous drug and was committed to this court for sentence. This morning, he confirmed his plea and admitted the Summary of Facts.

Briefly, on the night of 3 January 2017, the defendant was intercepted at the Customs Arrival Hall of Lo Wu Control Point, after he had passed through the green channel. Upon search, two plastic bags containing the drugs particularised in the count, that is, a total of 10.04 grammes of a crystalline solid containing 9.68 grammes of methamphetamine hydrochloride which is commonly known as ‘Ice’ were found inside the front pocket of his jeans. The defendant was arrested and under caution, he claimed that the drugs were for his own consumption and that he has spent 1,500 renminbi for the purchase of the drugs from his friend in China.

The urine specimen collected from the defendant on 6 January 2017, showed positive result in respect of amphetamine.

The estimated street value of the drugs was about HK$3,200.

The Defendant’s Background and Mitigation

The defendant is now aged 39 and he was born in the mainland. He has received lower education and is married with five children aged between 14 and 7. The defendant came to Hong Kong in 2012 and he had all along been unemployed since his arrival in Hong Kong. Prior to this offence, the defendant had no criminal conviction, but at present, he has got two convictions, the offences of which were committed by him on the same occasion when he was found with the drugs. One of those convictions was in relation to unlawful possession of dutiable goods and the other was in relation to a failure to declare to a member of Customs and Excise. He was fined for both offences.

In mitigation, Mr Keung submitted that the defendant has a lung problem which prevents him from getting any work. The whole family has been living on social assistance. At the time of the offence, the family received HK$14,000 a month while the family had to pay a monthly rental of about HK$7,300. Mr Keung told the court that the defendant did not take any money from the assistance money as it was deposited into his wife’s account, nor did the defendant contribute any sum towards the family expenses.

Two letters written by the defendant and his family members were given to the court. In brief, the defendant expressed his deep remorse and his family begged for a lenient sentence to be imposed on him. Mr Keung informed the court that the defendant started taking drugs in December 2016 which was introduced to him by his undesirable peers. When asked what was the source of the money of the said purchase of the drugs in question, Mr Keung said that the defendant had borrowed the money while he was in the mainland and had used the whole sum on the drugs, telling his friend that he would repay him when he was able to.

In the course of submissions, Mr Keung urged upon this court that the defendant had the whole lot of drugs for his own consumption. When asked how long the drugs would last the defendant, Mr Keung initially said that the defendant was a casual drug abuser and would only take the drugs three times a month which was what the defendant himself said after his arrest and which was contained in the Summary of Facts. However, Mr Keung later said that his instructions were that the defendant took the drugs once daily and each time he would need 0.2 to 0.3 gramme of the ‘Ice’. Therefore, the drugs seized would be for his consumption for 1½ months. On hearing the claim that the whole lot of drugs was for the defendant’s own use. I told Mr Keung that at that stage and based on the matters disclosed and submitted, I was not prepared to accept that the defendant would have any significant portion of the drugs for his own consumption. I then asked Mr Keung if there would be further evidence adduced before me to support this claim or if there would be further submissions made. Mr Keung replied that there was none.

Tariffs

The revised tariffs for trafficking in ‘Ice’ were laid down in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For trafficking up to 10 grammes of Ice, a term of imprisonment of 3 to 7 years is called for. Further, in HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal stated that if the trafficking involved an international element, then the sentence would need to be enhanced. In respect of the level of enhancement, the court observed in the case of HKSAR v Chung Ping Kun CACC 85/2014 (2 July 2014), that as a broad guideline, for up to 250 grammes of the drugs, an enhancement of 6 months would be appropriate.

Sentencing in this case

Having considered the amount of the ‘Ice’ involved and the facts of this case, I am going to adopt a starting point of 83 months. The defendant brought the drugs across the border, but given the relative small amount involved, I consider that an upward adjustment of 1 month would adequately reflect this cross-border element. The final starting point is, therefore, one of 84 months.

For the following reasons, I completely reject the claim made by the defendant that the drugs or any significant part would be for his own consumption:

(i) The defendant had been unemployed all along and his family was living on social assistance at the time. In other words, the defendant was in dire financial situation and would not have the means to purchase the drugs in question. In the absence of evidence and in the light of the inherent improbability, I reject the claim that he had borrowed 1,500 renminbi from his friend in the mainland for the alleged purchase.

(ii) The estimated street value of the drugs was HK$3,200. Without any evidence, I reject the claim that the defendant had bought it at half the price for renminbi 1,500.

(iii) The drugs were packed in two different plastic bags. One was a large bag containing 9.65 grammes of a crystalline solid which had 9.2 grammes of ‘Ice’. The other was a small bag containing 0.48 gramme of a crystalline solid which had 0.46 gramme of ‘Ice’. Mr Keung did not dispute this. If the drugs had been purchased by the defendant in one go for his own consumption, I do not see why there would have been the need to so package the drugs. On the facts admitted and in the absence of evidence, I am sure that the drugs were so packaged because the drugs were not for the defendant’s own consumption as claimed.

(iv) Although the defendant’s urine test showed a positive result to amphetamine. That is just one of the factors to be taken into account and is not determinative of whether the whole lot or any substantial amount of the drugs was for the defendant’s own use. According to the defendant, he first claimed after his arrest that he only consumed the drug three times per month. Later, he told his counsel that he consumed it once daily and the drugs would be for his use for 1½ months. Given the defendant’s financial situation, I reject the claim that he had bought the drugs intending to stock it up for consumption for such a period of time. Even if it might be the case that the defendant would have the small bag for his own use, simply possession of a dangerous drug is itself an offence which would call for a term of imprisonment. Therefore, even assuming that there might be a small amount of the drugs which the defendant kept for his own consumption, that would not affect the sentence in this case in any material way.

In short, I do not consider that I should exercise my discretion to grant the defendant any reduction because of this claim for self-consumption. See for example, HKSAR v Kong Tak Lung CACC 27/2016 (11 August 2017, unreported).

The defendant pleaded guilty at the earliest opportunity. I would give him the full one-third reduction for his plea. But other than the defendant’s plea, there is nothing in this case which would warrant any discount in sentence. His previous clear record and his family circumstances are not matters of any significant mitigation in the light of this type of serious offence. 84 months reduced by one-third is 56 months and this is the sentence I impose on the defendant for the count of trafficking in a dangerous drug to which he has pleaded guilty.